The answer is almost universally the same — they “assume that their law firm is on top of it.”

But are they? Do you really know what your firm is doing when it comes to eDiscovery and how much they are spending? It’s not unreasonable at all for you to expect that your firm has done the work to get up to speed on eDiscovery, but the reality is that eDiscovery is a niche practice area and you need to know that your firm has acknowledged that fact and has personnel who are covering your ass assets.

Most haven’t. Unfortunately, many eDiscovery “departments” are marketing only with no real substance there. The eDiscovery attorneys are litigators first because that represents real billable hours. They handle eDiscovery disputes as they arise, but they are not living it day in and day out. Having a dedicated eDiscovery attorney doesn’t fit the business model. One law firm partner told me that his firm “hasn’t drunk the kool-aid.”

Yikes.

Your discovery, the single most expensive part of litigation, is now kool-aid?

So, what do you do? How do you know how to find out what your firm knows and does?

Start by asking the right questions. I’ve put together a list of the top 5 questions to ask your firm BEFORE you retain them on a particular matter to help you get your arms around their capabilities.

All you have to do is ask.

And yes, I do know that I am asking you to step outside your comfort zone.

I’m always amazed at the number of in-house counsel who don’t ask law firms to tell them about their practices. Instead, they get a bill and they pay it, no questions asked. You can’t afford to do that anymore. There are better ways to do discovery. Better ways that not only cost less, but get you to resolution faster, which means your business can focus on making money, or you can get paid for the injustice you’ve suffered. Challenge your firms to step up to the plate.

Part of what we do at ESI Attorneys is help clients get eDiscovery best practices in place with their existing firms. In doing so, we start with these five questions. The questions themselves are the tip of the iceberg, so over the next few weeks we’ll explore each one in depth so you can get best practices in place yourself. Take these questions and incorporate them into your RFP’s, send them out in an annual survey to your law firms, have the firms fill them out in advance of your annual retreat for firms, etc. Do whatever makes sense for your business, but do it.

Now, without further ado, the top 5 questions to ask your law firm about how they handle eDiscovery:

1. Who is in charge of eDiscovery for my matter?

2. What is the process that the firm follows to conduct eDiscovery?

3. What technology does the firm use and how much will it cost me?

4. Does the firm create a discovery report for each matter?

5. What kind of metrics does the firm provide to the client so the client can track and control costs?

The days of the broad brush approach to discovery are well and truly behind us. ESI represents significantly larger volumes of data AND the ability to apply technology to that data to find what we want and need FASTER.

Do Better Discovery. Know what you’re spending your money on and demand better.

Next week’s post: Five Questions to Ask Your Law Firm About eDiscovery: #1 Who’s in Charge?

(And yes, that’s a link to the top 5 plays in Game 1 of the NBA Finals. My fav is Ray Ray’s dunk. Hold over from my Milwaukee days — what can I say?)